A civil liability law publicationfor officers, jails, detention
centers and prisonsISSN 0739-0998 - Cite this issue as:2012 JB December
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Criminal Conduct

A former federal
corrections officer was sentenced to 48 months in prison and three years
of supervised release on criminal charges that he arranged for prisoners
to send money through the mail or via Western Union, to co-conspirators
outside the prison. That money was then paid to the officer as bribes in
exchange for smuggling cigarettes, marijuana, and other contraband into
a federal corrections center. A co-conspirator was sentenced to two years
probation. U.S. v. Hinnant, #5:11-cr-00354, U.S. Dist. Ct.
(E.D.N.C. Aug. 15, 2012). Prosecutor's
press release.

Exercise

A Colorado prisoner
in solitary confinement complained about the lack of outdoor exercise.
He was locked in his cell 23 hours a day. He and other solitary confinement
prisoners receive five one-hour exercise sessions in an exercise room per
week. A federal judge ruled that this lack of outdoor exercise was cruel
and unusual punishment and a "serious deprivation of a human need."
Anderson
v. State of Colorado Dept. of Corrections, 1:10-cv-01005, 2012
U.S. Dist. Lexis 120309 (D. Colo.).

False Imprisonment

Two California prisoners
were kept confined beyond their scheduled dates of release for the purpose
of completing an evaluation of whether they should be classified as sexually
violent predators and therefore civilly committed. In both cases, the parole
board had issued 45-day parole holds. The California Supreme Court found
that the definition of what a "good cause" was for holding a
prisoner beyond their sentence, contained in a state regulation, was invalid,
but the parole board's reliance on it was excusable since no prior court
decision had invalidated it. The board's action was excusable as a good
faith mistake of law. In
re Lucas, #S181788, 53 Cal. 4th 839, 137 Cal. Rptr. 3d 595, 269
P.3d 1160 (2012).

Medical Care

A prisoner argued
that the defendants were deliberately indifferent to his serious medical
needs because they failed to comply with his medical chrono (a collection
of informal notes taken by prison officials documenting medical orders)
by not housing him in a ground floor cell, and by failing to provide him
with an interpreter at his medical appointments. The trial court dismissed
his complaint with prejudice. A federal appeals court vacated that dismissal,
finding that the trial court acted erroneously by declining to consider
arguments by the plaintiff which he raised for the first time in response
to objecting to the magistrate's findings and recommendations. The plaintiff's
objections directed the court's attention to fact explaining that he might
have exhausted his administrative remedies, as well as the facts that he
was disabled, had limited English skills, and was illiterate. Failure to
consider these things was an abuse of discretion. Akhtar
v. Mesa, #11-16629, 2012 U.S. App. Lexis 22701 (9th Cir.).

A prisoner's lawsuit
asserted that he was suffering excruciating pain because he was not being
provided with effective medical treatment for his hemorrhoids, which had
grown to the size of golf balls. He sought an injunction against the alleged
inadequate medical care. While trial judges assigned to such prisoner cases
are supposed to screen them "as soon as practicable" after they
were docketed, to weed out frivolous or malicious lawsuits and let the
rest move forward, in this instance, the complaint had not been screened,
even though ten months had elapsed. This was too long and federal judges
"must not leave litigants to bear pain indefinitely." Wheeler
v. Wexford Health Sources, Inc., #12-1806, 689 F.3d 680 (7th Cir.
2012).

Prison Litigation Reform Act: "Three Strikes"
Rule

A prisoner claimed
that a correctional facility failed to enforce a grooming policy requiring
that each inmate barber have three interchangeable razor heads, with one
being disinfected while another was in use. He argued that this exposed
him to a risk of infection. He sought to proceed on the lawsuit as a pauper
and the trial court dismissed the claim, which was the plaintiff's third
dismissal; for failure to state a claim. A federal appeals court interpreting
the "three strikes rule" of the Prison Litigation Reform Act
ruled that the dismissal of the immediate claim could not count as the
third strike for purposes of the rule, as it was not a third "prior"
dismissal. Counting it as the third strike would effectively insulate the
dismissal itself from appellate review. Henslee
v. Keller, #11-6707, 681 F.3d 538 (4th Cir. 2012)

Prisoner Assault: By Officer

A prisoner claimed
that a corrections officer used excessive force against him in his cell
by yanking his hands through a slot in the cell door before removing his
handcuffs. Before the lawsuit was filed, there were color photos of the
prisoner's injuries as well as stationary video footage of the area where
the alleged assault occurred, which were used in an internal investigation.
The prisoner asked the officer, during discovery, to produce the photos
and video footage but this evidence could not be located by prison officials,
and they must have been lost or destroyed. The prisoner was not entitled
to a jury instruction concerning making an adverse inference against him
because of this missing evidence. There was no indication that the officer
should be held responsible for the loss of this evidence or that he had
previously had possession of it so as to destroy it. The appeals court
noted that to require all defendants in situations like this officer "take
affirmative steps to ensure that their employing prison continues to maintain
evidentiary records for every incident with a prisoner would impose an
added burden on prison employees." Adkins
v. Wolever, # 111656, 692 F.3d 499 (6th Cir. 2012).

Prisoner Classification

California prison
regulations provided that classifying a prisoner as a gang member could
have the consequence of him being housed in a security housing unit. An
intermediate appeals court granted a petitioner habeas relief from being
designated a gang member, as it disagreed with the department's interpretation
of the regulation at issue. The California Supreme Court overturned that
ruling, finding that the appeals court had failed to appropriately defer
to the corrections department's interpretation of its own regulations.
The department interpreted the regulation as not requiring proof of two-way
interaction between the prisoner and another inmate already deemed a gang
affiliate. The department's policy of classifying some inmates as gang
affiliates based on their own unilateral actions was not clearly unreasonable.
In
re Cabrera, #S19728, 2012 Cal. Lexis 9985.

Prisoner Suicide

****Editor's Case Alert****

A 16-year-old in
an Illinois juvenile detention facility had a history of mental illness
and three known prior in custody suicide attempts. The record of his latest
intake assessment indicated that he suffered from major depression, psychosis,
bipolar disorder, anger, behavior disorders and Attention
Deficit Hyperactivity Disorder. He had also previously gone through
drug abuse counseling. He had a history of setting fires, cruelty to animals,
threatening to kill teachers, alcohol and cannabis use, gang affiliation,
and putting a gun to a cousin's head. Despite all this, the juvenile stated
that he was not having depressive or manic symptoms and had not recently
had suicidal thoughts. Prozac and lithium was prescribed for him and he
was evaluated for suicide risk from time to time. Subsequently, he successfully
hung himself in his cell.

Even assuming that
the plaintiff had shown that the defendants were aware of the suicide risk
of using metal bunk beds in rooms for mentally disturbed detainees, and
that alternative arrangements were feasible, the law was not clearly established
enough to defeat the defendant supervisors' defense of qualified immunity.
A defendant doctor was not sufficiently enough involved with the decedent
to be liable for his death. Miller
v. Harbaugh, #11-3418, 2012 U.S. App. Lexis 21855 (7th Cir.).

Private Prisons and Entities

A prisoner appealed
from the dismissal of his claims against a doctor on a federal civil rights
claim. While the prisoner did not received required notices spelling out
what he had to do to oppose her motion for summary judgment, this was harmless
since it was clear that there were no facts that would allow the inmate
to prevail. The doctor, at the time she treated the prisoner, was working
as an independent contractor and not as an employee of the prison or the
hospital. She was not a state actor and could not be liable for a federal
civil rights claim. Emergency medical care is not a traditionally and exclusively
government function. Stratton
v. Buck, #10-35656, 2012 U.S. App. Lexis 19660 (Unpub. 9th Cir.).